To comply with federal regulations that Title IX Coordinator Michele Minter previously referred to as “problematic,” the University has implemented two new and “interrelated” sexual misconduct policies.
In early May, the United States Department of Education announced new Title IX rules that required live cross-examination, altered the definition of sexual harassment, and narrowed the scope of complaints that schools can consider, prompting concerns from students and administrators.
During an Aug. 3 webinar open to the University community, the Council of the Princeton University Community (CPUC) voted to approve a revised Title IX policy to comply with federal guidance — as well as a separate “University Sexual Misconduct policy” addressing incidents outside of Title IX’s recently-narrowed scope.
“Conduct that violated University policy last year will continue to violate University policy this year but … may be adjudicated under two different grievance procedures,” according to slides presented during the meeting.
Cases adjudicated under the Title IX procedure will include mandatory live cross-examination of witnesses — a policy the University previously advocated against — while University Sexual Misconduct Policy cases can rely on written cross-examinations. Both policies will create a “voluntary, remedies-based” restorative justice track, according to the Title IX policy page.
Both the Title IX policy and University Sexual Misconduct policy were approved by a full faculty vote in late July and went into effect immediately upon approval by the CPUC today at around 5:20 p.m. EDT.
Recognizing that the policy is “more complicated than what we’ve had in the past,” Minter told meeting attendees that the University “will be doing work to try and make it as clear as we can to our community.”
During the meeting, University President Christopher Eisgruber ’83 also responded to questions involving anti-racist training and the impact of Immigrations and Customs Enforcement (ICE) restrictions on first-year international students.
What falls under each new policy?
In compliance with the Department of Education’s new regulations, the University Title IX policy no longer applies to any conduct that occurs outside of the U.S. or in any location where the University does not exercise “substantial control over the respondent” — which, according to Minter, includes the eating clubs and “off-campus residences.”
Additionally, due to the narrowed definitions from the federal government, the University’s definitions of “Improper Conduct Related to Sex” and “Sexual Exploitation” also now fall outside of Title IX’s jurisdiction, no matter where or under what circumstances the violations occur. While “Quid Pro Quo” sexual harassment and “severe and pervasive” sexual harassment still fall under Title IX, “severe or pervasive” harassment does not.
Instead, such instances will now fall under the new University Sexual Misconduct policy, which will include conduct associated with University-sponsored activities outside of the U.S.; conduct involving the use of University computing, network resources, and email accounts; and sexual misconduct that occurs within eating clubs or elsewhere in the local vicinity.
“We have both less freedom to operate within the Title IX sphere, and on the other hand, the Department of Education has said that they don’t particularly care what we do outside of that arena,” Minter said, explaining the two policies. “It’s an odd construct.”
If an allegation “would constitute prohibited conduct under both policies” if substantiated, then the investigation and adjudication will be conducted through the Title IX process, rather than through the University Sexual Misconduct process.
The Department of Education has also required that Title IX investigations include live hearings and live cross-examinations of witnesses by advisers of alleged perpetrators. Per Secretary of Education Betsy DeVos, the measures guaranteed “due process” to students accused of assault.
The University previously worked with the New Jersey State Bar Association to submit comments claiming that “mandatory live cross-examination of every witness in Title IX cases may have a chilling effect on complaints and witnesses and lead to an inequitable process.” But administrators were ultimately forced to adopt the policy.
“As President Eisgruber recently told the full faculty,” Rights, Rules, and Responsibilities Chair and Professor of Astrophysical Sciences and International Affairs Christopher Chyba said during the meeting, “a failure to bring the University’s policies and procedures into compliance within the new regulations would make any University resolution of a Title IX misconduct complaint subject to a legal challenge.”
In compliance, University Title IX proceedings will include formal live hearings — either in-person or remotely — where “the parties will be provided with an equal opportunity for their advisers to conduct cross-examination of the other party and/or of relevant witnesses.” If any complainant, respondent, or witness does not attend the hearing or refuses to be cross-examined, the panel cannot rely on any statement or information they provided in reaching a determination in the investigation. The panel will have discretion in determining whether any posed questions are “relevant.”
While the University is required to “provide live cross-examination by the advisers” for Title IX cases, Director of Gender Equity and Title IX Administration Regan Crotty ’00 said that the University Sexual Misconduct policy will “allow for written cross-examination, which is what we do in current cases and has seemed to work well.”
Students, staff, and faculty will also be provided “predetermined financial resources to assist students, faculty, and staff to engage with attorneys to serve as their advisers,” according to Crotty. The activist group Princeton Students for Title IX Reform (PIXR) previously called on the University to “provide adequate legal resources to students to ensure equity” during the cross-examining process.
When asked by a PIXR member about how the University will prepare survivors for this cross-examination, Crotty said she would expect community members to utilize the predetermined financial resources. Additionally, Crotty stated that the University is engaging with different offices, including SHARE, and that a number of different individuals, “including residential college staff” and “people from [Counseling and Psychological Services]” will be involved in “supporting individuals going through this process.”
Both new policies also separate investigators and adjudicators. Previously, the same panel would both investigate and adjudicate misconduct claims, but going forward, these tasks will be completed by separate investigative and hearing panels.
Additionally, despite the Department of Education giving schools the option to adopt a more stringent evidence standard, the University has chosen to continue relying on its current standard for all formal sexual misconduct proceedings.
“The University is not changing its evidence standard,” said Minter during the Q&A portion of the meeting. “We will continue to use the preponderance of evidence standard.”
An opt-in ‘informal resolution’ system
The new policies also outline an entirely optional “informal resolution process.” The University was previously not permitted to use informal resolutions for sexual violence cases under the Obama administration’s Title IX regulations, Crotty explained.
After a formal complaint is made, and with approval of all parties and Minter, individuals can undergo this “voluntary, remedies-based process designed to provide parties with an option to resolve disputes with other students in a forum that is separate and distinct from the University’s formal grievance processes under the University Sexual Misconduct policy.”
“The purpose of the informal resolution process is to address the conduct which has been reported by the complainant, and place the parties in a position to pursue their academic and non-academic interests in a safe, respectful, and productive educational and working environment,” the policy dictates. “Under this process, there will be no disciplinary action taken against a respondent, and the resolution will not appear on the respondent’s disciplinary record.”
Even if the formal grievance process has begun, either party may initiate the informal resolution process “up until five business days prior to the hearing.”
Through this process, cases will be referred to “a trained informal resolution facilitator” who “will consult (separately) with each party in an effort to reach a resolution that best meets the interests and needs of the parties.” According to the policy, “Unless they mutually choose to do so as part of an agreement, the parties will not meet together in person as part of the process.”
Potential outcomes include changes to on-campus housing, a “skewed” No Contact Order placing the burden on the respondent, restriction from particular events and campus organizations, and participation in Community Integrity Program (CIP) training or BASICS alcohol education.
These changes echo PIXR’s 2019 demand for “an opt-in restorative justice track for survivors who wish to avoid the process of Title IX proceedings,” as well as a more recent call by the group for “[giving] complainants a choice” in pursuing a mediated process.
“I know this is something that our community is really interested in, and it will be an aspect of both policies moving forward,” Crotty said during the CPUC meeting.
The process is available for all matters involving a student complainant and student respondent — or a faculty/staff complainant and faculty/staff respondent — but is not available in matters involving a student and employee.
What else was discussed at the CPUC meeting?
To a question from Undergraduate Student Government president Chitra Parikh ’21 about anti-racist training for students, faculty, and staff, Eisgruber said that the University is “always looking for ways to improve what we’re doing around training and will consider suggestions.”
“Right now, as I think you know, my cabinet colleagues and I are reviewing a variety of different recommendations and suggestions that have come in with regard to what the University can do to stand against racism,” he responded. “We’ll be continuing that review over the course of this month.”
Minter, who serves as Vice Provost for Institutional Equity and Diversity, added that the University does not currently have race-specific training but does “cover a wide range of topics” including “bias, stereotypes, microaggression, bystander intervention, and allyship skills.”
“We do those for all campus populations in customized ways,” Minter added. “This is something we continue to take very seriously and look forward to doing more on in the future.”
In response to the second and last question about ICE restrictions prohibiting first-year international students from coming to campus if the students are taking fully online course loads, Eisgruber reiterated that the University believes it will be able to offer enough in-person instruction for students to be able to arrive on campus by Aug. 30.
“I am myself hoping to teach in a class that would be available to our first-year international students,” Eisgruber added.
According to a message from Dean of the College Jill Dolan to an international student posted online, Eisgruber agreed “to teach a course on Free Speech and Inclusivity.’”
The CPUC also voted to slightly alter the wording of its “Retaliation” policy in Rights, Rules, and Responsibilities, a change Chyba said does not alter the substance of the policy.
The next meeting is scheduled for Sept. 21. It is “probably going to be on Zoom,” Eisgruber said.
Contributor Grace Rosenberg ’23 contributed reporting.